In re Jimenez-Santillano
| Citation | 21 I&N Dec. 567 |
| Decision Date | 24 July 1996 |
| Docket Number | Interim Decision No. 3291.,File A90 355 520. |
| Parties | In re Fidel JIMENEZ-Santillano, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent, through counsel, has timely appealed from an Immigration Judge's decision, dated August 1, 1995, finding the respondent deportable as charged and statutorily ineligible for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), and adjustment of status under the "registry" provisions of section 249 of the Act, 8 U.S.C. § 1259 (1994). The principal issue on appeal is whether the respondent can invoke the salutary provisions of section 212(c) to waive his deportability under section 241(a)(3)(B)(iii) of the Act, 8 U.S.C. § 1251(a)(3)(B)(iii) (1994). We find that the Immigration Judge properly answered this query in the negative. The appeal will therefore be dismissed.
The record reflects the following facts. The respondent is a 51-year-old native and citizen of Mexico who entered the United States on an unknown date prior to January 1, 1972. On January 12, 1989, the respondent's immigration status was adjusted to that of a lawful permanent resident, with temporary residence effective June 25, 1987. Subsequently, on August 29, 1994, the respondent was convicted in the United States District Court for the District of New Mexico of fraud and misuse of documents required for entry into the United States, in violation of 18 U.S.C. § 1546(a) (1994).1
Count 1 of the indictment, to which the respondent specifically pled guilty, reads as follows On or about the 30th day of April 1992, and continuing on through on or about the 21st day of January, 1993, in Chaves County, in the State and District of New Mexico, the defendants. . . did knowingly sell and otherwise dispose of a document required for entry into the United States, an alien registration receipt card, that is a Resident Alien Card, Form I-551, in the name of... a person not authorized by law to receive said document.
Thus, the relevant clause of 18 U.S.C. § 1546(a) under which the respondent was convicted provides:
Whoever . . . sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, [an immigrant or nonimmigrant] visa, permit, or other document [required for entry into the United States], to any person not authorized by law to receive such document . . . [s]hall be fined under this title or imprisoned not more than 10 years, or both.
The respondent was sentenced to 2 years' probation for the offense.
At the deportation hearing below, the respondent admitted the factual allegations contained in the Order to Show Cause and Notice of Hearing (Form I-221) and conceded deportability as charged under section 241(a)(3)(B)(iii) of the Act. That section provides for the deportation of "[a]ny alien who at any time has been convicted . . . of a violation of, or an attempt or a conspiracy to violate, section 1546 of title 18, United States Code ()." The respondent thereupon applied for a waiver of inadmissibility under section 212(c) of the Act and, in the alternative, adjustment of status under section 249 of the Act in conjunction with a waiver of inadmissibility under section 212(h) of the Act. See 8 C.F.R. §§ 242.17(a), 249.1 (1995).
The Immigration Judge determined that the respondent was statutorily ineligible for both forms of relief. Citing this Board's decision in Matter of Wadud, 19 I&N Dec. 182 (BIA 1984), and the Attorney General's decision in Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), aff'd, 983 F.2d 231 (5th Cir. 1993), the Immigration Judge first held that the respondent could not invoke section 212(c) to waive his deportability under section 241(a)(3)(B)(iii) of the Act for his conviction because there is no statutory counterpart to that section among the various grounds of excludability. Next, citing our decision in Matter of Bufalino, 11 I&N Dec. 351 (BIA 1965), the Immigration Judge held that the respondent was ineligible for adjustment of status under section 249 of the Act because he was already a lawful permanent resident and, therefore a record of his lawful admission into the United States already existed. The Immigration Judge's finding with respect to the respondent's eligibility for "registry" under section 249 of the Act is not contested on appeal, and we do not address it.
On appeal, the respondent highlights the ground of inadmissibility provided in section 212(a)(6)(C)(i) of the Act relating to fraud or willful misrepresentation of a material fact in procuring a visa, entry into the United States, or other immigration benefit. He contends that this "willful misrepresentation" ground is sufficiently comparable to 18 U.S.C. § 1546(a) to permit a section 212(c) waiver of his deportability under section 241(a)(3)(B)(iii).2 The respondent argues that his application for such discretionary relief bears "unusual and/or outstanding equities," including 25 years of continuous residence in the United States, a lawful permanent resident spouse, two United States citizen children, other family ties, and certain hardship to the respondent and his family if he is deported. Accordingly, the respondent requests that we remand the record to the Immigration Judge for an evidentiary hearing on his eligibility for relief under section 212(c) as a matter of discretion. The Immigration and Naturalization Service supports the Immigration Judge's decision and argues that section 212(c) relief is unavailable to the respondent to waive his deportability under section 241(a)(3)(B)(iii) of the Act.
Our charge, then, is to determine whether the respondent can invoke section 212(c) of the Act to waive his deportability under section 241(a)(3)(B)(iii). We agree with the Immigration Judge's holding that a section 212(c) waiver is unavailable in these circumstances.3
Section 212(c) of the Act provides, in pertinent part, that aliens lawfully admitted for permanent residence who temporarily proceed abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of 7 consecutive years, may be admitted in the discretion of the Attorney General without regard to certain specified grounds of excludability. In 1976, the availability of section 212(c) relief was significantly expanded when the United States Court of Appeals for the Second Circuit held that a section 212(c) waiver should be available regardless of whether the applicant had departed from the United States subsequent to the acts which rendered him deportable. Francis v. INS, 532 F.2d 268 (2d Cir. 1976). The court held that "[f]undamental fairness dictates that permanent resident aliens who are in like circumstances, but for irrelevant and fortuitous factors, be treated in a like manner." Id. at 273. This Board decided shortly thereafter to adopt the approach of the Second Circuit nationwide in Matter of Silva, 16 I&N Dec. 26 (BIA 1976). See generally Matter of Esposito, 21 I&N Dec. 1, at 6-12 (BIA 1995).
In Matter of Hernandez-Casillas, supra, the Attorney General held that a section 212(c) waiver is available in deportation proceedings only to those aliens who have been found deportable under a charge of deportability for which there is a comparable ground of excludability. Id. at 27; see also Matter of Esposito, supra, at 8-11; Matter of Meza, 20 I&N Dec. 257, 258 (BIA 1991); Matter of Wadud, supra, at 184-86; Matter of Granados, 16 I&N Dec. 726, 728 (BIA 1979), aff'd, 624 F.2d 191 (9th Cir. 1980). Of course, it is doctrine that this Board and all Immigration Judges are strictly bound by the determinations of the Attorney General. See Matter of Esposito, supra, at 11; 8 C.F.R. §§ 3.0-3.1(d) (1995).
As we explained in Matter of Esposito, supra, at 7, "the relief provided by section 212(c) is the waiver of a particular ground of exclusion or deportation, not a waiver of the particular offense which forms the basis for that ground of exclusion or deportation." Thus, our focus "is not whether the deportable alien's particular offense, in this case a conviction for a [document fraud and misuse offense], could form the basis for a ground of exclusion and therefore be waivable; rather, the focus is whether the ground of deportation against the alien has a comparable ground of exclusion." Id.
Section 212(a)(6)(C)(i) of the Act states: "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States or other benefit provided under this Act is excludable." The...
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